PROMISSORY NOTE
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Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
$1,270,000.00 11-26-2001 11-26-2006 54015 24/100 119785 JH
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References in the shaded area are for Lender's use only and do not limit the applicability of this document to any
particular loan or item.
Any item above containing "* * *" has been omitted due to text length limitations.
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Borrower: XXXX BROS. INVESTMENTS, LLC LENDER: XXXXXXX BANK NATIONAL ASSOCIATION
0000 XXXXX 000XX XXXXXX 0000 XX 0XX XX
XXXXX, XX 00000 PO BOX 0000
XX XXXXX, XX 00000
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Principal Amount: $1,270,000.00 Initial Rate: 6.000% Date of Note: November 26, 2001
PROMISE TO PAY. XXXX BROS. INVESTMENTS, LLC ("Borrower") promise to pay to
XXXXXXX BANK NATIONAL ASSOCIATION ("Lender"), or order, in lawful money of the
United States of America, the principal amount of Twenty Million and 00/100
Dollars ($20,000,000.00) or so much as may be outstanding, together with
interest on the unpaid outstanding principal balance of each advance. Interest
shall be calculated from the date of each advance until repayment of each
advance.
PAYMENT. Borrower will pay this loan on demand. Payment in full is due
immediately upon Xxxxxx's demand. If no demand is made, Xxxxxxxx will pay this
loan in one payment of all outstanding principal plus all accrued unpaid
interest on June 19, 2003. In addition, Borrower will pay regular monthly
payments of all accrued unpaid interest due as of each payment date, beginning
January 19, 2002, with all subsequent interest payments to be due on the same
day of each month after that. Unless otherwise agreed or required by applicable
law, payments will be applied first to accrued unpaid interest, then to
principal, and any remaining amount to any unpaid collection costs. The annual
interest rate for this Note is computed on a 365/360 basis; that is, by applying
the ratio of the annual interest rate over a year of 360 days, multiplied by the
outstanding principal balance, multiplied by the actual number of days the
principal balance is outstanding. Borrower will pay Lender at Xxxxxx's address
shown above or at such place as Lender may designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an independent index which is the WALL STREET
JOURNAL PRIME RATE (the "Index"). The index is not necessarily the lowest rate
charged by Lender on its loans. If the Index become unavailable during the term
of this loan, Lender may designate a substitute index after notice to Borrower.
Lender will tell Borrower the current Index rate upon Xxxxxxxx's request. The
interest rate change will not occur more often than each DAY. Borrower
understands that Lender may make loans based on other rates as well. The Index
currently is 5.000% per annum. The interest rate to be applied to the unpaid
principal balance of this Note will be at a rate of 1.000 percentage points over
the Index, resulting in an initial rate of 6.000% per annum. NOTICE: Under no
circumstances will the interest rate on this Note be more than the maximum rate
allowed by applicable law. Whenever increases occur in the Interest rate,
Lender, at it's option, may do one or more of the following: (A)increase
Borrower's payments, to ensure Borrower's loan will pay off by its original
final maturity date, (B) increase Borrower's payment to cover accuring interest,
(C) increase the number of Borrower's payments, and (D) continue Borrower's
payments at the same amount and increase Borrower's final payment.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed
earlier than it is due. Early payments will not, unless agreed to by Xxxxxx in
writing, relieve Xxxxxxxx of Xxxxxxxx's obligation to continue to make payments
of accrued unpaid interest. Rather, early payments will reduce the principal
balance due. Xxxxxxxx agrees not to send Lender payments marked "paid in full",
"without recourse", or similar language. If Borrower sends such payment, Xxxxxx
may accept it without losing any of Xxxxxx's rights under this Note, and
Borrower will remain obligated to pay any further amount owed to Lender. All
written communications concerning disputed amounts, including any check or other
payment instrument that indicates that the payment constitutes "payment in full"
of the amount owed or that is tendered with other conditions or limitations or
as full satisfaction of a disputed amount must be mailed or delivered to:
XXXXXXX BANK NATIONAL ASSOCIATION, 0000 XX 0XX XX., XX XXXXX, XX 00000-0000.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, the total sum due under this Note will bear interest from the date of
acceleration or maturity at the variable interest rate on this Note. The
interest rate will not exceed the maximum rate permitted by applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this note:)
Payment Default. Borrower fails to make any payment when due under this
Note.
Other Defaults. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Note or in
any of the related documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement
between Lender and Borrower.
Default in Favor of Third Parties. Borrower or any Grantor defaults
under any loan, extension of credit, security agreement, purchase or
sales agreement, or any other agreement, in favor of any other creditor
or person that may materially affect any of Borrower's property or
Borrower's ability to repay this Note or perform Borrower's obligations
under this Note or any of the related documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Note
or the related documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false
or misleading at any time thereafter.
Death or Insolvency. The dissolution of Borrower (regardless of whether
election to continue is made), any member withdraws from Borrower, or
any other termination of Borrower's existence as a going business, the
insolvency of the Borrower, the appointment of a receiver for any part
of Xxxxxxxx's property, any assignment for the benefit of creditors,
any type of creditor workout, or the commencement of any proceeding
under any bankruptcy or Insolvency Laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceedings, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the loan. This
includes a garnishment of any of Xxxxxxxx's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply
if there is a good faith dispute by Xxxxxxxx as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower gives Xxxxxx written notice of
the creditor or forfeiture proceeding and deposits with Lender monies
or a surety bond for the creditor or forfeiture proceeding, in an
amount determined by Lender, in its sole discretion, as being an
adequate reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with
respect to any Guarantor or any of the indebtedness or any Guarantor
dies or becomes incompetent, or revokes or disputes the validity of, or
liability under, any guaranty of the indebtedness evidenced by this
Note. In the event of a death, Lender, at its option, may, but shall
not be required to, permit the Guarantor's estate to assume
unconditionally the obligations arising under the guaranty in a manner
satisfactory to Lender, and, in doing so, cure any Event of Default.
Adverse Change. A material adverse change occurs in Borrower's
financial condition, or Xxxxxx believes the prospect of payment or
performance of this Note is impaired.
PROMISSORY NOTE
Loan No: 54015 (Continued) Page 2
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Insecurity. Lender in good faith believes itself insecure.
Cure Provisions. If any default, other than a default in payment is
curable and if Borrower has not been given a notice of breach of the
same provision of this Note within the preceding twelve (12) months, it
may be cured (and no event of default will have occurred) if Borrower,
after receiving written notice from Lender demanding cure of such
default: (1) cures the default within fifteen (15) days; or (2) if the
cure requires more than fifteen (15) days, immediately initiates steps
which Lender deems in Xxxxxx's sole discretion to be sufficient to cure
the default and thereafter continues and completes all reasonable and
necessary steps sufficient to produce compliance as soon as reasonably
practicable.
LENDER'S RIGHTS. Upon default, Xxxxxx may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, and then
Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect
this Note if Borrower does not pay. Borrower will pay Lender that amount. This
includes, subject to any limits under applicable law, Xxxxxx's reasonable
attorneys' fees and Xxxxxx's legal expenses, whether or not there is a lawsuit,
including reasonable attorneys' fees, expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction), and
appeals. If not prohibited by applicable law, Borrower will also pay any court
costs, in addition to all other sums provided by law.
JURY WAIVER. Xxxxxx and Xxxxxxxx hereby waive the right to any jury trial in any
action, proceeding, or counterclaim brought by either Xxxxxx or Borrower against
the other.
GOVERNING LAW. This Note will be governed by, construed and enforced in
accordance with federal law and the laws of the State of Minnesota. This Note
has been accepted by Xxxxxx in the State of Minnesota.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any IRS or Xxxxx accounts, or any trust accounts
for which setoff would be prohibited by law. Borrower authorizes Xxxxxx, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
indebtedness against any and all such accounts, and, at Xxxxxx's option, to
administratively freeze all such accounts to allow Lender to protect Xxxxxx's
charge and setoff rights provided in this paragraph.
COLLATERAL. Xxxxxxxx acknowledges this Note is secured by COLLATERAL AS
DESCRIBED IN THE FOLLOWING DOCUMENTS: DEED OF TRUST, ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT FROM BORROWER TO LENDER DATED 12/19-01.
LATE CHARGE. SHOULD BORROWER FAIL TO PAY ANY PAYMENT REQUIRED DURING THE TERM OF
THIS LOAN, OR TO PAY THE INDEBTEDNESS UPON THE MATURITY OF THIS LOAN, AND SHOULD
ANY SUCH AMOUNT REMAIN UNPAID FOR A PERIOD OF TEN (10) DAYS FOLLOWING ITS DUE
DATE, THEN BORROWER AGREES AND COVENANTS TO PAY TO LENDER A LATE CHARGE IN THE
AMOUNT OF FIVE PERCENT (5%) OF ANY SUCH AMOUNT, INCLUDING THE AMOUNT DUE AND
PAYABLE AT MATURITY.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Xxxxxxxx, and
upon Xxxxxxxx's heirs, personal representatives, successors and assigns, and
shall inure to the benefit of Lender and its successors and assigns.
GENERAL PROVISIONS. This Note is payable on demand. The inclusion of specific
default provisions or rights of Lender shall not preclude Xxxxxx's right to
declare payment of this Note on its demand. Lender may delay or forgo enforcing
any of its right or remedies under this Note without losing them. Borrower and
any other person who signs, guarantees or endorses this Note, to the extent
allowed by law, waive presentment, demand for payment, and notice of dishonor.
Upon any change in the terms of this Note, and unless otherwise expressly stated
in writing, no party who signs this Note, whether as maker, guarantor,
accommodation maker or endorses, shall be released from liability. All such
parties agree that Lender may renew or extend (repeatedly and for any length of
time) this loan or release any party or guarantor or collateral; or impair, fail
to realize upon or perfect Xxxxxx's security interest in the collateral ;and
take any other action deemed necessary by Xxxxxx without the consent of or
notice to anyone. All such parties also agree that Xxxxxx may modify this loan
without the consent of or notice to anyone other than the party with whom the
modification is made. The obligations under this Note are joint and several.
SECTION DISCLOSURE. This loan is made under Minnesota Statues, Section 47.59.
PRIOR TO SIGNING THIS NOTE, XXXXXXXX READ AND UNDERSTOOD ALL OF THE PROVISIONS
OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS, XXXXXXXX AGREES
TO THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL
CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
BORROWER:
XXXX BROS. INVESTMENTS, LLC
By: /s/ Xxxxxxx X. Xxxx (Seal) By: /s/ Xxxxx X. Xxxxx (Seal)
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XXXXXXX X. XXXX, CHAIRMAN of XXXX BROS. XXXXX X. XXXXX, SECRETARY of XXXX BROS.
INVESTMENTS, LLC INVESTMENTS, LLC
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